Motion to Dismiss Modification of Child and Spousal Support based on Disentitlement Doctrine
In re Marriage of LAURALIN ANDERSON COHEN and RICHARD COHEN.
Appeal from a postjudgment order of the Superior Court
After Richard Cohen (Richard) filed a request to modify his child support and spousal support obligations, Lauralin Anderson Cohen (Lauralin) moved to dismiss Richard’s motion under the disentitlement doctrine as Richard was delinquent on his support obligations. The trial court granted Lauralin’s motion and on its own, conditioned the filing of any future modification requests on Richard being current on his support obligations. As discussed below, we conclude the court did not abuse its discretion in granting Lauralin’s motion to dismiss, but erred in conditioning the filing of future modification requests on Richard being current on his support obligations. Accordingly, we affirm in part, and reverse in part.
Richard and Lauralin were married in 1990 and separated in 2006. They have four children, all of whom suffer from significant disabilities. In 2011, they entered into a stipulated judgment of dissolution of marriage, which provided that Richard would pay $15,000 monthly in spousal support and $13,200 in child support.
In 2014, Richard filed a request for order (RFO) seeking, among other things, a reduction in his child support obligations and termination of spousal support.
In November 2018, the parties entered into a stipulation to resolve certain spousal and child support issues, including Richard being in arrears on his support obligations. The parties agreed Richard would pay Lauralin $524,400 to satisfy all arrearages. They further agreed that Richard’s future child support obligations would be reduced to $10,500 monthly.
Finally, the parties agreed a trial would be held before Commissioner Richard G. Vogl, retired, sitting on assignment as a private judge on Richard’s request to modify future spousal support.
At the February 11, 2019 hearing, Commissioner Vogl issued a tentative decision reducing spousal support to $10,125 per month.
Before Commissioner Vogl issued his final ruling on March 4, 2019, Richard filed an RFO to modify his support obligations under the November 2018 stipulation, based on the ground his income would be greatly reduced because of job loss.
He requested spousal support be terminated, and child support reduced to guideline. In a supporting declaration, Richard stated that while he had $66,646 in monthly income available for support in November 2018, his employment would be terminated on March 15, 2019, leaving him with only $18,000 in monthly income.
Lauralin filed a motion to dismiss Richard’s RFO. She argued it should be dismissed under the disentitlement doctrine because Richard had not paid any spousal support since October 1, 2018, was late in paying his February 2019 child support, and did not pay the March or April 2019 child support. Richard opposed the motion to dismiss based on his inability to pay. He asserted he had to borrow $500,000 to pay his arrearages, and he paid child support until March 2019 when he lost his job.
On April 3, 2019, Commissioner Vogl issued his Final Statement of Decision reducing Richard’s spousal support to $8,311 per month and confirming child support would be $10,500 monthly. He determined spousal arrearages as of February 15, 2019, were $38,801, for the period of October 1, 2018 through February 1, 2019. On May 30, 2019, Commissioner Vogl ruled on Lauralin’s motion to dismiss as follows: “Without prejudice, this court declines to dismiss . . . based upon the Disentitlement Doctrine.” He granted the parties’ request to release the case back to the public court system. Commissioner Vogl did not rule on the March 4, 2019 RFO. The RFO was set for a hearing in superior court on February 5, 2021.
In late April 2019, Richard filed an income and expense form (INE) stating, under penalty of perjury, that he began working for DJD & S Corporation March 1, 2019, with a monthly gross income of $20,500. His average monthly income for the past 12 months, however, was $66,546.
October 2019 - OSC re. Contempt Filed
In March 2020, in a New York legal matter involving the parties, Richard filed a sworn statement claiming his income was “approximately $300,000 annually.”
Three months later, in June 2020, his lawyer sent a letter stating that Richard’s monthly income was $16,665, or approximately $200,000 annually.
In October 2020, Richard filed an INE, indicating he continued to work for DJD & S, but his gross monthly income had decreased to $15,000, and his estimated monthly expenses had increased to $40,350.
On January 13, 2021, Lauralin again moved to dismiss theRFO under the disentitlement doctrine.
After the matter was continued several times, on May 3, 2021, Richard filed his objection to the January 13, 2021, motion to dismiss.
At the May 14, 2021 hearing on Lauralin’s motion to dismiss, the trial court asked Lauralin’s counsel whether the motion to dismiss was based on the “unclean hands doctrine,” and counsel agreed.
“Commissioner Vogl’s ruling was made on April the 3rd of 2019. It was the OSC re: contempt that finally prompted the respondent to pay arrearages that were ordered by Commissioner Vogl back on April the 3rd of 2019. That OSC re: contempt was, I believe, filed in October of 2019. Short of that, he wouldn’t have paid it. It’s just plainly obvious he wouldn’t have. It’s also plainly obvious he has the ability to pay it. Because once he was facing the OSC re: contempt, he came up with the money.
On July 3, 2021, the trial court entered its order dismissing, without prejudice, the March 4, 2019 RFO “with leave . . . to file a future [RFO] for modification of the support orders with retroactive effect preserved only back to the date of such future filing and provided that, at the time of such future filing, [Richard] is current in the payment of his child and spousal support obligations.”
A. The Appellate Court Declined to Dismiss the Appeal Under the Disentitlement Doctrine
At the outset, Lauralin argues this appeal should be dismissed under the disentitlement doctrine because of Richard’s repeated failures to comply with his court-ordered support obligations. “An appellate court has the inherent power, under the ‘disentitlement doctrine,’ to dismiss an appeal by a party that refuses to comply with a lower court order.” (Stoltenberg v. Ampton Investments, Inc. (2013) 215 Cal.App.4th 1225, 1229 (Stoltenberg).) As our Supreme Court has said, “A party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state.” (MacPherson v. MacPherson (1939) 13 Cal.2d 271, 277.) “‘Appellate disentitlement “is not a jurisdictional doctrine, but a discretionary tool that may be applied when the balance of the equitable concerns make it a proper sanction . . . .” [Citation.]’ [Citation.] No formal judgment of contempt is required; an appellate court ‘may dismiss an appeal where there has been willful disobedience or obstructive tactics. [Citation.]’ [Citation, italics added.] The doctrine ‘is based upon fundamental equity and is not to be frustrated by technicalities.’” (Stoltenberg, supra, 215 Cal.App.4th at p. 1230.) The “disentitlement doctrine ‘is particularly likely to be invoked where the appeal arises out of the very order (or orders) the party has disobeyed.’” (Ironridge Global IV, Ltd. v. ScripsAmerica, Inc. (2015) 238 Cal.App.4th 259, 265.) “[T]he merits of the appeal are irrelevant to the application of the doctrine.” (Ibid.) Finally, “[c]ourts do not lightly apply the disentitlement doctrine.” (Findleton v. Coyote Valley Band of Pomo Indians (2021) 69 Cal.App.5th 736, 756 (Findleton).) It should “be applied in a manner that takes into account the equities of the individual case.” (People v. Puluc-Sique (2010) 182 Cal.App.4th 894, 901.)
In plain English, Lauralin argued that Richard's appeal should be dismissed under the disentitlement doctrine because of his repeated failures to comply with court-ordered support obligations. The disentitlement doctrine allows an appellate court to dismiss an appeal by a party that refuses to comply with a lower court order. The doctrine is discretionary and based on fundamental equity, and it can be applied where there has been willful disobedience or obstructive tactics. The merits of the appeal are irrelevant to the application of the doctrine, and it should be applied in a manner that takes into account the equities of the individual case. Courts do not lightly apply the disentitlement doctrine. The appellate court did not agree with Lauralin’s argument.
B. The Appellate Court Found that the Trial Court Did Not Err Dismissing March 4, 2019 RFO
Turning to the appeal, Richard argues that under res judicata principles the trial court erred in hearing Lauralin’s second motion to dismiss because Commissioner Vogl had already heard her first motion to dismiss and denied it. The Appellate court did not agree with Richard’s analysis because Commissioner Vogl declined to grant the first motion to dismiss “without prejudice.” “The term ‘without prejudice,‘ in its general adaptation, means that there is no decision of the controversy on its merits, and leaves the whole subject in litigation as much open to another application as if no suit had ever been brought.”
Richard next argued the trial court erred in denying his request for a full evidentiary hearing to present evidence that his nonpayment of support obligations was based on inability to pay.
The Appellate Court reasoned, "At the outset, we note that the right to live testimony under Family Code section 217 may be forfeited. (In re Marriage of Binette (2018) 24 Cal.App.5th 1119, 1127.)” Further, “At the hearing, counsel neither referenced Family Code section 217 nor requested that Richard be allowed to testify. Rather, counsel made a general request to present evidence about Richard’s inability to pay.”
The Appellate Court further reasoned, “Implicit in the court’s words is a determination that the material facts were not in controversy (rule 5.113(b)(2)), and that live testimony was not necessary for the court to assess the parties’ credibility (rule 5.113(b)(3)).” (In re Marriage of Binette, supra, 24 Cal.App.5th at p. 1132.) The court thus satisfied its obligations under Family Code section 217 and California Rules of Court, rule 5.113.
Finally, the Appellate Court reasoned, “In any event, any error in refusing live testimony was harmless.” It is not reasonably probable that live testimony from Richard about his inability to pay would undermine the court’s conclusions based on the declaration and documentary evidence. (In re Marriage of George & Deamon (2019) 35 Cal.App.5th 476, 484 [finding any error in complying with Family Code section 217 harmless where live testimony would not affect any of the issues on which the court based its ruling].
In his appellate reply brief, Richard argues for the first time that the trial court improperly relied on Lauralin’s declaration and his INE’s because those documents were never expressly admitted. The Court found that because he failed to make evidentiary objections below, he waived his right to raise evidentiary objections to those documents on appeal.
The Court rejected Richard’s general claim that the trial court’s ruling was erroneous because there was insufficient evidence to show he willfully disobeyed the court orders on support because the Appellate Court reviews the court’s application of the disentitlement doctrine for an abuse of discretion. (Ho v. Hsieh (2010) 181 Cal.App.4th 337, 345.) “‘An abuse of discretion occurs when, in light of applicable law and considering all relevant circumstances, the court’s ruling exceeds the bounds of reason. [Citations.]’ [Citation.]” (Ibid.)
C. The Trial Court Abused Its Discretion in Conditioning All Future RFO’s to Modify Support on Richard Being Current With His Obligations
The appellate court held dismissal of future RFO’s must be on an individual motion-by-motion basis.
Key Take-Aways:
The disentitlement doctrine allows a appellate court to dismiss an appeal (or a trial court to dismiss a motion) by a party that refuses to comply with a lower court order, but it is discretionary and based on fundamental equity. The doctrine can be applied where there has been willful disobedience or obstructive tactics.
The right to live testimony under Family Code section 217 may be forfeited, and the court may determine that the material facts are not in controversy and that live testimony is not necessary to assess the parties' credibility. Any error in refusing live testimony may be harmless if it is not reasonably probable that it would undermine the court's conclusions.
A party may waive their right to raise evidentiary objections to documents on appeal if they fail to make objections below.
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